Crum v. Upchurch

• Decision Date: 18 November 1957
• Docket Number: No. 40571,40571
• Parties: E. R. CRUM, Jr. v. Mrs. Jean S. UPCHURCH.
• Court: Mississippi Supreme Court

Page 117

98 So.2d 117

232 Miss. 74

E. R. CRUM, Jr. v. Mrs. Jean S. UPCHURCH.

No. 40571.

Supreme Court of Mississippi.

Nov. 18, 1957.

Montgomery & Varnado Belzoni, for appellant.

L. G. North, Womack & Womack, Belzoni, for appellee.

LEE, Justice.

E. R. Crum, Jr., as a result of a controlversy with his former wife, Mrs. Jean S. Upchurch, appealed from the terms of the final decree which, in ordering a partition of their joint property, denied him credit for certain mortgage payments prior to her remarriage, continued the use of the furniture and other equipment by two of the children until they should reach their majority, and increased their monthly support payments from $75 to $100.

The litigation arose in this way: The parties were married on December 30, 1934. They owned jointly the home in which they lived in the town of Belzoni; and on September 23, 1949, they entered into a 'property' and 'family' settlement. It was agreed that Mrs. Crum should have the use of the residence and contents in which to live with the children awarded to her as long as she remained single. Crum was to make the monthly payments due on a mortgage on the property to First Federal Savings & Loan Association of Belzoni, as they came due, and also to pay the insurance and taxes thereon. In addition, commencing October 1, 1949, he was to pay monthly to Mrs. Crum $100 as alimony and $25 as support for each of the children awarded to her; but the alimony would cease in case of her remarriage.

Thereafter on October 17, 1949, Mrs. Crum filed suit for a divorce. The four children of the marriage were named. She asserted that $100 alimony and $25 per child monthly and the use and occupation of the Belzoni residence and contents as long as she was single would be reasonable support.

The court by its decree of date of December 6, 1949, awarded her a divorce and the custody of Joyce Patricia and Sandra Jean, girls 10 and 2 years of age respectively. The custody of Ernest Roy III and Robert Lee, boys 9 and 5 years of age respectively, was awarded to their father. There was no mention whatever of alimony, support, etc.

On September 28, 1954, Mrs. Crum filed a petition for modification of the foregoing decree. She attached a copy thereto and also a copy of the agreement of date of September 23, 1949. She stated that Crum had complied with the agreement until August 1954, but complained that he was then refusing to make the alimony and mortgage payments. She alleged that he was able to do so, and because of her alleged ill health and the increased cost of living, she prayed for increased support of $150 and $50 respectively.

Crum's answer to the petition averred that he complied with the predivorce contract for a time, but admitted that he had failed to make alimony payments since August 1954, and that he was not making the payments on the house, but that he had continued the support payments for the children. He said that his earnings had decreased and that no increase in the property settlement should be made. His answer also contained a plea of res judicata by reason of the divorce decree. He made his answer a cross bill and sought to have the court require Mrs. Crum to convey her interest in the property to him. He also alleged the execution of the property settlement and attached a copy thereof as an exhibit.

Mrs. Crum's answer to the cross bill denied that she had made any agreement to convey her interest in the property, and reiterated her claim for an increase in alimony and support of the children.

By its decree of December 8, 1954, the court sustained the plea of res judicata, but increased the support for each of the children to $37.50 a month. Crum was also ordered to make the delinquent payments to the Savings & Loan Association and keep them current in order that the two children might have a home. It was expressly stated therein that this action did not involve an adjudication of the equities of the parties under their contract of September 23, 1949.

On June 22, 1955, Mrs. Crum married William Upchurch.

Crum, on November 2, 1955, filed a petition to reopen this cause on account of a change in conditions, namely the remarriage of Mrs. Crum, and for petition of the property. He alleged that his 'obligation should be fixed at whatever sum is necessary to properly support the two named minor children and that petitioner is perfectly willing to pay whatever sum is fit, suitable and proper to support' them. He prayed for an accounting, claiming as credits his payments on the mortgage to the Savings & Loan Association, on the deed of trust to D. Lundy, the cost of repairs, insurance, and certain legal expenses in the sale of a 50-foot strip off of the home lot, and for the recovery of furniture and equipment in the home.

Mrs. Upchurch in her answer admitted that the decree of December 8, 1954, awarded $75 for support of the children, but averred that they were also entitled to the use of the home. She conceded that she was not entitled to be furnished a home, but alleged that Crum was not relieved of his obligation to the children. They both owned the furniture jointly and such property should be kept for the children until they become 21 years of age. She denied that Crum was entitled to credit for the payments on the mortgages, upkeep and insurance, because he was obligated to make such payments in order to keep a roof over the heads of the children. She admitted that 'the decree should be reopened and the support and maintenance of the children be adjusted in such manner as the court deems fit and proper under the altered circumstances.'

The court, by its decree of date of December 13, 1955, dismissed the foregoing petition without prejudice.

On May 3, 1956, Crum filed another petition to reopen the cause and for the partition of the property. Like allegations were made as in his answer and cross bill in the previous proceedings. Again he claimed as credits all payments on the mortgages, and for repairs and insurance. He referred to the decree of December 8, 1954, which required him to pay $75 for the support of the two girls and to furnish the house as additional support for them. But he showed that the circumstances had changed and his former wife was then married. He stated that he 'is perfectly willing to pay whatever sum is fit, suitable and proper for the support of the above two named minor children and that the support of the said two minor children should be fixed at whatever sum is necessary to properly support and care for' them. He further alleged that, if it was absolutely imperative for him to furnish the home for the children, the possession thereof should be awarded to them until they should become 21 years of age.

The answer of Mrs. Upchurch denied that it was to the best interest of all parties to partite the property, and denied that Crum was entitled to credit for his alleged expenditures as a capital investment. She admitted that the amount paid by her on the D. Lundy deed of trust was correct, and other matters not necessary to mention here. She admitted her remarriage but averred that her present husband was under no obligation to furnish a home for the two children. She denied that the decree should be materially changed.

The cause was set for a vacation hearing, but because of the illness of counsel for Mrs. Upchurch, the cause was continued several times and until December 5, 1956.

Both Crum and Mrs. Upchurch testified, and there was no substantial controversy between them in regard to the amounts severally expended by them. In the course of his testimony, Crum expressed a...